Memeorandum

September 20, 2006

Dear Office Of Professional Responsibility

Clarice Feldman follows up her Weekly Standard article about the Plame case by sending a letter to the Department of Justice's Office of Professional Responsibility questioning the conduct of Special Counsel Patrick Fitzgerald.

Ms. Feldman raises an interesting question with a fun backstory - was Ms. Plame actually covered by the Intelligence Identities Protection Act, and did Mr. Fitzgerald misrepresent her status under the IIPA to the court in his affidavit of Aug 27 2004?

First, Ms. Feldman:

At no time in the
unredacted portions of the affidavit did Fitzgerald directly say that
Plame met the test of the IIPA - which she clearly does not -but in
various ways he deliberately left the Court with that impression in
order to effect the rare contempt order and jailing of a reporter.

And for the backstory, let's cut to Jack Shafer, who pounded on the NY Times and their lead attorney. Floyd Abrams, for basing their argument on the First Amendment while attempting to have the subpoena against Time reporter Judy Miller quashed:

Maybe a First Amendment legend isn't what this case called for in the
first place. Maybe Cooper and Miller would have been better served by
having a criminal lawyer who knows how to bargain.

With New York Times Publisher Arthur Sulzberger Jr. promising
to appeal this decision, perhaps both Cooper and Miller might want to
rethink the utility of hanging their whole case on this First Amendment
defense. If I were running their defense committee, I'd give the case
to Bruce W. Sanford.

...

What could Sanford do for Cooper and Miller that Abrams can't? For
one thing, he could tack away from the First Amendment argument. Even
though I'm a First Amendment extremist, I found Abrams' oral argument
before the D.C. Circuit to be wishful and flabby. I don't know of any
court, let alone the Supreme Court, that is likely to hold that
reporters possess a near automatic right to ignore grand jury subpoenas.

If
I'm right, a fresh law jockey might be the ticket. In their op-ed,
Sanford and Toensing called upon the special prosecutor Fitzgerald and
the two reporters to ask Judge Thomas Hogan, who oversees the grand
jury, "to conduct a hearing to require the CIA to identify all
affirmative measures it was taking to shield Plame's identity." They
conclude their piece, "Before we even think about sending reporters to
prison for doing their jobs, the court should determine that all the
elements of a crime are present."

Eventually a consortium of newspapers did hire Bruce Sanford to file an amicus brief making the "no crime" argument, without any apparent success. But since I had been arguing that the courts would let this proceed for other reasons, I would hardly say that Mr. Sanford's apparent failure demonstrates that the IIPA does in fact cover Ms. Plame.

The more that I think about, the less likely it is that before the appointment of the SP, people on the Senate Judiciary Committee knew it wasn't Rove or Libby.

Let's just take the Wa Po which has close ties with the Dems on that Committee. Woodward knew. Ben Bradley knew. Pincus was told by Woodward but says he's no recollection of that. Nevertheless there is that mysterious remark of his about being interviewed by the SP in which he indicates he heard about Plame which closely matched Novak's original account or a "passing remarK" by a non-partisan.

Rocco--ahem--he turned down a chance to make me a judge after my name was approved as a nominee by the Committee selected to do so. (Carter did, too) I was a career employee, not a political appointee to OSI.

TM, remember a consortium of media argued that Plame's identity was not a closely held secret in an smicus brief to the Ct of Appeals that was rather underplayed.

Now, fellow sleuthers, don't you think Armitage spoke to Pincus, too:
"Pincus gave a deposition Sept. 16[2004] with an unnamed source’s permission, but refused to name the source who had already identified him or herself. On Oct. 7 and 13, Hogan held Miller and then Cooper and Time in contempt, fined them $1,000 per day and ordered them to jail until they testify. The fines and sentences were stayed pending a consolidated appeal."

I think I said this clumsily before so I will try again. I think there is every reason in the world for the office of professional responsibility to ignore, lose, pretend they didn't get, or burn your letter. After all, who would know?

The best chance you have for getting an answer is for it to be picked up and swooped up by the blogosphere, so it becomes much more difficult for the PTB to claim they lost it.

If indeed an answer is forced, I think that you and Tom will have indeed caused something resembling a revolution, and the praise that goes with it cannot be more well deserved.

I already sent an email to Congressman Sensenbrenner head of the House Judiciary Committee with a request he keep an eye on this. And if OPR refuses to act, I asked that his Committee look into it.
A couple of bloggers have written to OPR and are requesting others to do so.

Frankly, if they say they have no jurisdiction, they have some 'splainin' to do about why they sat on their hands when Comey and Fitz represented to the Libby court that Fitz was bound by Departmental regs.

Excellent letter, Clarice. I hope you get some response besides an acknowledgement of receipt.

Off topic: I watched the Chavez speech at the UN earlier. I thought I was watching an old SNL skit, complete with translator who added the appropriate inflections. The scariest thing is it was real and he was applauded by those present. We are in a heap of trouble people...

As For the General Assembly [Jonah Goldberg]
If I were John Bolton, I would send photos of each delegate who applauded wildly for Chavez to the relevant embassies and capitals with a note detailing how much those countries get in aid of one kind or another. And then I would simply write, "What's wrong with this picture?"

Actually, the suggestion to move the UN... with a stop payment and turn Turtle Bay into a hotel? Works for me.

My brother in law is from Venezuela. He detests Chavez and thinks anyone who applauds him is uneducated and lacks the decency to see what he has really done to his home country. I haven't talked to him today, after the speech, but I'm anxious to hear his reaction.

I wonder how Rove persuaded Chavez to hold up that Chomsky bit? Maybe Soylent will tell us.

____
Advise and Consent--Now that describes how Washington was when I first got here. Still hardball, but considerably more civil.

The reception scene at the mansion was shot at a place(Tregaron--originally home of Ambassador Davies and his then wife Majories Merriweather Post) which became a school on whose Board I was a member for 15 years. If you look closely you will see Scoop Jackson and his lovely wife Helen in the shot.

I don't know. I only get a slice of the information from someone who thinks Chavez is the devil. ::grin:: The middle class has been the hardest hit by him. From what my b-i-l tells me, the middle class is being demolished.

Ooh, I'm really sorry Clarice has already sent her letter, because in re-reading Fitz's affidavit just now I see a really big omission by Fitz that muddies what was going on.

Fitz, on page 4, says that Kristoff wrote a column on May 6, and Pincus wrote an article on June 12th. Not mentioning the Kristoff rebuttal of Pincus's article on June 13th.

Had he done so, and attached a copy of it, the judge might have seen that there was a public controversy over whether or not Cheney had been responsible for sending the 'former ambassador'. I.e., that Plame's name came out as a piece of information that directly helped to answer that question. Casting much doubt on the idea that there was some sort of perverse revenge seeking on the part of Libby.

Actually, the suggestion to move the UN... with a stop payment and turn Turtle Bay into a hotel

Now that's a movement I can get behind.

While watching Chavez, my only thought was that this man is saying this on our soil! I want he and armajihad out of this country. And I don't want them to be invited back. Let them go spout their venom where speech is not free.

I think that everyone who is interested should be encouraged to write their own letters. One letter from 10 people is effective but 10 individual different letters from 10 people carries even more weight.

Clarice, I hope we'll be seeing you soon on places like Hannity & Colmes and the WSJ report. You've done a huge public service with this ongoing project. It reminds me of what Dorothy Rabinowitz did at the WSJ a few years ago in the Amirault matter. A single voice can make a difference.

Well....if one is too busy to write their own letter, simply copy and forward clarice's letter to your Congresspeople and ask them to look into it. Say:

I came across this letter from Attorney Clarice Feldman to the DOJ's Office of Professional Responsibility, and I thought you should see it too, (insert Senator/Representative name). I want some answers to the questions that have been raised.

It was interesting to note that in re the last round of subpoenas, Bob Bennett representing Miller didn't bother with the 1st amendment argument, while Time, INC etc. were all still beating that dead horse..

When are reporters going to figure out a pinch of sceptism of their sources fantastic stories or motives might worth considering?

The basic disclosures from Bush were not a surprise. The issue wasn't whether CIA flights with suspected terrorists had landed in some foreign countries and that terrorists were detained on foreign soil. The issue is whether these constituted some "network" of "secret prisons" that rivaled those of the Soviet era. Priest exaggerated the program into something it was not, in order to kill it.

One current factor in the distorted coverage was the desire to make Bush look bad by suggesting he has finally come clean about a controversial counter-terrorist program. Another factor was to salvage the reputation of Dana Priest herself, whose coverage had come under searing attack. Priest became an embattled reporter whose marriage to a prominent anti-Bush activist, and alleged use of a pro-John Kerry fired CIA officer named Mary McCarthy as a source, had become a matter of public interest. It is still not clear what role that rogue elements in the CIA played in her "scoop." Did they feed Priest disinformation? Or did she get the story wrong on her own?

If Priest had simply reported that the CIA was holding a few terrorists and moving them around the globe, the reaction would have been ho-hum. She would have been lucky to have gotten the story on page 15. But when the issue became "secret prisons" like the Soviet gulags, that got page-one treatment and helped to create an international controversy. Priest, in short, had created a stink. And that's apparently what Pulitzers are for. But it's the story that stinks.

Another stinker was the first story AIM noticed erroneously reporting that Bush had "acknowledged Wednesday the existence of previous secret CIA prisons." It was written by Associated Press writer Nedra Pickler and AIM editor Cliff Kincaid called to ask about her claim. "My story speaks for itself," she said. "I don't want to do any interviews on what went into writing the story." This exchange then ensued:

Kincaid: I'm asking you where the term prisons came from because it's not in the speech. The term secret prisons just isn't there.

Pickler: I don't want to discuss this any further but if you want to talk to some of our spokespeople you can but this isn't something I do—conduct interviews about what's in my stories.

Kincaid: Can you just tell me where the term secret prisons came from in his speech? That's all.

Pickler: I don't want to discuss how my stories were written. No.

Kincaid: Well, your story is wrong. I think you ought to have the integrity to admit it. He did not use the term secret prisons. Why don't you just report the facts? That's all I'm asking you."

Pickler: (Silence. Hangs up the phone).

The truth will, of course, never catch up with the original erroneous reports, and our suspicion as the story developed was that even some anonymous administration officials would begin to be cited as confirming the use of "secret prisons." This is how "conventional wisdom" based on media misinformation develops, even though the facts may be something else entirely.

In fact, Sandy Johnson, Washington bureau chief for AP, later informed AIM that they checked the Pickler story with somebody at the White House, who said that the report about the President confirming the "secret prisons" was "just fine." But the identity of the White House official, she said, will just have to remain secret.

AP seems to have perfected a method of reporting that avoids the facts and the need to correct mistakes. This bad journalism shows that AP can't be trusted.

Clarice,
I don't want to come across as just jumping on the bandwagon in thanking you for your continually outstanding efforts, but let me simply say that when TM undertakes the heady task of filling out his baseball lineup card of which JOM'ers are gonna' be in which positions, he's gonna' have a hell of a time deciding whether to stick you in as Clean-Up, (batting fourth), or in having you being the "Lights-Out Closer", ala Mariano Rivera and his killer fastball. Sort of the Babe Ruth problem all over again. If of course you prefer "Hoop", well I got no problem calling you "Air Clarice". Here's to hoping that your most sincere and deserved thanks come from a guy named Scooter Libby.

Bob, Please don't take any of my complements of Clarice as anything but respectful. If there's any negative double entendre's read into it I sure didn't mean it. When the bases are loaded she's the clean up hitter we want at the plate knocking the ball out of the ballpark. And I s'pose I should have said Air Feldman, not Air Clarice, but regardless, with 2 seconds left and down by 1, she's the JOM'er you want taking the shot from the top of the key. Apologies if it was read any other way than respectful.

Clarice. I don't think anyone was surprised that the US had a rendition program. We have had one since Clinton. But holding a few dozen high value murderers--including the mastermind of 911--does not a "secret" prison, much less a gulag, make. For one, it makes a mockery of the millions of innocent people who were murdered in the Soviet Union.

She used a tactict right out of the radical left media handbook--sensationalize, and put it out of context. And I think her main motive was to feed red meat to the European socialists-who it seems are heavily linked to "progressives" here, and seem to co-ordinate politically.

As I pointed out, when the socialists in the EU put forth the resolution to investigate the "secret prisons", the only sources they used in the resolution were Dana Priest, Brian Ross of ABC and Human Rights Watch.

As I mentioned on the other thread, if Grenier was one of Priest's sources, that will be very interesting for Libby's defense. According to Wiki, he was fired by Goss in Feb. 2006 over his objections to the rendition program--but still works for the CIA. If Wells can show that Grenier sourced Priest, that will put his testimony in doubt. Joe Wilson worked with CIP through the Iraq Policy Indormation Project. Mel Goodman of CIP is a VIPS. Priest's husband, and CIP collected tax free monies for Win Without War. And finally, most damning, Dana Priest and Joe Wilson appeared together in the "Cowboy Diplomacy" conference, sponsored by CIP and Chris Dodd. To properly judge any differences between Grenier and Libby's memory, especially if what Grenier says is damaging to Libby, the jury would have the right to know.

Clarice--Great letter-particularly considering how little we now know of all that really went down. For example, compare Frits' affidavit9linked above) regarding Russert's testimony with Russert's statements at the time of the indictment-that he was only asked two questions: Did he mention "Plame" and did Libby leak to him. One of the two was obviously not telling the truth.

BTW - As per part of our discussion last night, I did create a letter here, which basically incorporates clarice's (hope that's OK with you clarice...), that people can cut and paste into an email program to send to their Congresscritters. Let's just keep blasting this into the government.

>>In fact, Sandy Johnson, Washington bureau chief for AP, later informed AIM that they checked the Pickler story with somebody at the White House, who said that the report about the President confirming the "secret prisons" was "just fine." But the identity of the White House official, she said, will just have to remain secret.
<<

Hey, at one time I was somebody at the White House.

Well, that was last Thanksgiving and my family was being given a tour by my cousin who works there.

Looking back, I'm very disappointed that I wasn't approached by anyone in the media to be a confidential White House source.

Pickler and company do not see the need to take preventative measures to fight the WOT. Her European allies are content to let the USA do all the heavy lifting while they stand on the sidelines criticizing-hmm... sounds like the dems strategy also. I totally discount these articles that propagandize the truth. Calling them secret prisons helps them sell newspapers. We know the real truth and will keep stating it on this blog.

Clarice, if you ever come to Houston on business or something, I'd really be honored if you'd let me have you over for dinner. You have my e-mail. I'll pick you up at your hotel and drop you off afterwards, or even let you have my guest room.

We're just simple folks though, so I'm talking about chicken fried steak (not the diner kind. the real thing made by a Texan to his mother's recipe) and mashed potatos. I do make some damn good gravy.

Seriously, we'd love to have you over. I'd be willing to absolutely guarantee simple Texas hospitality.

The Herbmeister has been wanting to meet you for a while anyway. I promise a free butt-sniff from him, be prepared to have your skirt lifted, the little dude even lifts my pants legs.

That is, after all, Texas hospitality. I give you my solemn word you'll have your butt sniffed and get some damn decent food.

Hell I'll even invite Texas Toast and Lurker and Maxwell over so we can have some fun and laugh at each other. I'm guessing that even with a guy like TT we'll all be laughing our butts off. My lefty wife will provide us with a bit of fun too.

Seriously. I hope next time you are coming down this way you'll call me.

Other Tom:
The reports of a repub demise have been premature and as always hopelessly wrong. I believe I predicted this back in July and August. People want to be safe- dems can't provide that. It's not in their DNA.Exaggerating a possible dem victory in November falls into the category of wishful thinking. How can we entrust our future well-being to people who live in a surreal world?

Now before you hear or read about Abramoff, read about Amy Klobuchar first - showing that there's corruption in both parties. When one party tries to paint the other party as the "Party of Corruption", think twice.

verner:
LOL. What a perfect idea. They do sound alike don't they. I still maintain the dems are absolutely tone deaf when it comes to the Midwest and rural America. That comes from too much big city living. Can someone provide a link to the Amy Klobuchar dust-up?

"I'm a little inclined to think that Karl Rove, the political manager at the White House, who is a very clever man, he probably set up bin Laden to this [pre-election video]."
--Walter Cronkite, Larry King Live, 10/29/2004

I think what we're witnessing now is the result of a few perfectly-timed Karl Rove phone calls. First, he rang up the Saudi royal family and the oil company execs and had them dial back on the oil and gas prices. Next he called Ahmadinejad and Chavez and read them the scripts for their UN addresses.

For example, compare Frits' affidavit (linked above) regarding Russert's testimony with Russert's statements at the time of the indictment-that he was only asked two questions: Did he mention "Plame" and did Libby leak to him. One of the two was obviously not telling the truth.

That's not the only such discrepency. Miller has reported that her testimony about her notes from the time around her June 23 meeting with Libby (the one where he gave her the just-declassified NIE info) was of something like "Gee, I dunno what that 'wife works for bureau?' scribbled in the margin of my notes means. Maybe he mentioned Plame. Maybe not. Maybe that's the FBI. Maybe that's the CIA but that would be the first time in the history of Washington that the CIA was called 'the bureau.' Your guess is as good as mine." Then in the indictment, this turned into the flat declarative sentence that Libby disclosed Plame's identity to Judy Miller on June 23rd. (Kinda makes you wonder -- if Fitzgerald was just going to substitute his imaginings for Miller's testimony, why did he need her to show up at all?)

But, anyway, as paladin points out, in each case somebody is lying. In the case of the FBI agents' notes vs. Russert's memory of the FBI's questions, there is a substantial he-said-he-said element to it, and besides Russert on a TV show is certainly not under oath. On the other hand, Miller's testimony before the grand jury has multiple witnesses and a court reporter making a transcript -- if the indictment says that her testimony is materially different from what the court reporter recorded as her testimony, then Fitzgerald has big problems.

You know I live in MA which means I have absolutely zero political representation. There is not a person in the House or Senate who would give a whit about Clarice's letter and all would probably actively work to bury it.

The last time I did that it resulted in no reply from either (It was about Porkbusters) but a steady flow of fundraising letters from Kennedy telling me about Bush/Hitler for ten or twenty pages. Dutifully I replied to each demand for money with a letter explaining that every time I got anything from Kennedy I would contribute $1000 to the RNC. Clearly those dimwits do not read their mail.

The stuff here about Dana Priest and Nedra Pickler should only confirm for everyone how easy it was for the Wilsons and their handlers in the Kerry campaign to sell the "war on Wilson" story. These reporters all had a prior opinion of Karl Rove and the White House, and it was simple for David Corn to light the fuse with them. The story fit what they already thought, just like the "secret prisons" story fit what they already thought. Their biases show all the time.

Reading Ms Feldman’s letter to you—published in The American Thinker—prodded me to re-read the affidavit submitted by Patrick Fitzgerald on August 27, 2004, to the U.S. Court for the District of Columbia. I noticed what appears to be a disingenuous omission of facts on page 4 of said affidavit.

Under the heading, ‘The Background Facts: The Controversy About Niger and Uranium’, Fitzgerald notes that Nicholas Kristoff wrote a column in the New York Times on May 6, 2003, and Walter Pincus a news story in the June 12, 2003 Washington Post, telling the story of an unnamed former ambassador’s investigative trip to Niger in February 2002.

Conspicuous by its absence in Fitzgerald’s affidavit is any mention of the assertion by Pincus on June 12th, 2003, that Vice-President Cheney—contrary to the strong implication in Kristoff’s earlier column--knew nothing about that former ambassador’s trip at the time it took place.

Even more conspicuous, there is no mention of Kristoff’s reply, the very next day, in a column in the June 13th NY Times, titled, ‘White House in Denial’, sarcastically denying the truth of what Pincus reported. Kristoff removed any doubt (in his mind) about the genesis of (the then unnamed) Joseph Wilson’s trip, calling him, ‘an envoy investigating **at the behest of the office of Vice President Dick Cheney**’. [my emphasis]

Kristoff continued to heap abuse on the idea that Cheney knew nothing about Wilson:

'And now an administration official tells The Washington Post that Mr. Cheney's office first learned of its role in the episode by reading that column of mine. Hmm. I have an offer for Mr. Cheney: I'll tell you everything I know about your activities, if you'll tell me all you know.

'To help out Ms. Rice and Mr. Cheney, let me offer some more detail about the uranium saga. Piecing the story together from two people directly involved….'

Had Mr. Fitzgerald bothered to tell the court of Kristoff’s column of the 13th (and attach a copy of it) it would have been obvious that there was already a public political controversy over the background of Wilson’s trip. Nearly a month before Wilson’s own NY Times Op-ed piece and his appearance on Meet the Press.

I.e., making the CIA employment of Joseph Wilson’s wife a piece of evidence that would help resolve that controversy. A much simpler explanation, fitting the facts, than that the later exposure of Mrs. Wilson’s role by Robert Novak was some sort of perverse act of revenge by the Vice President or the White House. Indeed, it was the very same day Kristoff’s column appeared, June 13, 2003, that Bob Woodward of the Washington Post was informed of this fact by Richard Armitage, and Woodward has testified that he returned to the Post and informed Pincus what he’d learned.

As bad as this omission by Fitzgerald was, there is something even more disturbing in Kristoff’s response to Pincus. He states his sources included, **‘two people directly involved’**. [my emphasis]

By the time of this affidavit--August 27, 2004—thanks to a January 17, 2004 Vanity Fair profile of Joe and Valerie Wilson, it was public knowledge that Nicholas Kristoff had met and had breakfast with both the Wilsons in the first week of May 2003, prior to his May 6th column that inaugurated the controversy.

That is, the Wilsons themselves were known to Kristoff, and fit perfectly his description of ‘two people directly involved’. Certainly suggesting that the first reporter to have been informed of Valerie Plame Wilson’s CIA employment was not Judy Miller (Fitzgerald’s contention), nor Bob Woodward (via Richard Armitage) but Nick Kristoff from Valerie Wilson herself, on or about May 3, 2003.

In addition, on June 14, 2003 (the day after Kristoff’s unintentionally revealing second column on the controversy) Joseph Wilson made a public appearance in Washington D.C. at something called EPIC—Education for Peace in Iraq Center—and identified himself as,

'…that American ambassador who has been cited in reports in the New York Times and in the Washington Post, and now in the Guardian over in London, who actually went over to Niger on behalf of the government--**not of the CIA but of the government**….' [My emphasis]

Again, there is no mention of any of this in Fitzgerald’s affidavit, and it is hard to avoid the conclusion that had it been in there, it would have been obvious that the Special Counsel was intruding the Justice Department into what was merely a political controversy, not a criminal matter.

Patrick, We don't know the day that the other source (who sounds like Armitage) told Pincus that the CIA sent Plame, do we? It could well have been the day before his story and it could also have been Armitage.

About when the Hill knew it was Armitage--Aside from sources inside the DoJ, I think it is likely there were 3 at the WaPo who knews it was Armitage and knew it early on:Woodward, Pincus and Ben Bradley. I ask you, how likely is it that only these 3 knew at the paper? How likely is it that the Hill knew. If my supposition about Pincus knowing before his 2d piece is correct, at least 2 of the 3 knew over 3 months before Armitage came clean and 5 months before the appointment of Fitz.

As a matter of hourno ethics, it would be interesting to see how many stories the WaPo ran from mid-June to the Armitage revelation a few weeks ago, in which a WH or Rove Libby leak theme was suggested.

Matthews Loses It On Imus
09/21 12:06 PM - The Markup
MSNBC's Chris Matthews lost it today on "The Don Imus Show" and started ranting about how he was "against this bulls**t war from the beginning."

I argue in the upcoming issue (available for NRD subscribers on Friday) that there are some people we need to stop taking seriously because they bought all the bulls**t conspiracy theories about Karl Rove and Scooter Libby and the "outing" of Valerie Plame. As you might expect, Matthews appears near the top of the list for making comments like this:

One night Matthews suggested that, “like the Menendez brothers” Cheney and Libby could have “cooked their evidence ahead of time” to hide Cheney’s involvement. When a guest balked at Matthews’s grisly comparison of Cheney and Libby to two brothers who murdered their parents, Matthews added “I mean, nobody's here guilty of murder unless you count the war itself and you want to get big-time about it.”

Subscribers can read the rest here tomorrow.

Audio here. MSNBC really need to change Chris's phone numbers - all of them - someone whispers in his ear too much...sit him in a room with a huge poster board that reads

Specter, your letter is great and thank you for postint it on your site. If you want to send a letter, why note send it to Sensenbrenner with an explanation that you doubt your own representatives would care to act .

A federal judge handed a victory to the defense Thursday in the Valerie Plame case, siding with Vice President Dick Cheney's indicted former chief of staff in a fight over release of classified information.

U.S. District Judge Reggie Walton decided that he won't impose strict standards sought by prosecutors who want to limit the amount of classified information used in the trial of defendant I. Lewis Libby.

Prosecutors had proposed a stringent three-part legal test that would have allowed information to be considered for the trial only when its benefit to the defense outweighed the government's need to keep it secret.

Walton sided with Libby's lawyers, who said any evidence that's relevant to the case should be considered for use. Once Walton rules on which evidence is relevant, government attorneys can propose portions to be blacked out or summarized, the judge said.

Libby is accused of lying to authorities about conversation he had with reporters regarding the CIA employment of Plame. Plame's husband, former ambassador Joseph Wilson, criticized the Bush administration's intelligence leading up to the Iraq war and the couple has accused Libby and others of leaking Plame's identity as retribution.

Libby, who is charged with perjury, obstruction and lying to the FBI, wants access to classified information, including Cheney's daily intelligence memos, to show that Libby had more important things on his mind at the time of the leak and honestly didn't remember his conversations with reporters.

Prosecutors have suggested Libby is trying to derail the case by threatening to expose national secrets — a tactic known as graymail.

WASHINGTON (AP) - A federal judge handed a victory to the defense Thursday in the Valerie Plame case, siding with Vice President Dick Cheney's indicted former chief of staff in a fight over release of classified information.

U.S. District Judge Reggie Walton decided that he won't impose strict standards sought by prosecutors who want to limit the amount of classified information used in the trial of defendant I. Lewis Libby.

Sure, you are making sense but I'm not sure that I'm convinced. I still maintain that the deadliest bias in the whole fiasco is thinking that Plame's identity was always interesting. She was not covert. She wasn't classified (because of Sec 1.7(a)(1),(2)&(4)). The reason that she made it into the INR report is that Grossman was Wilson's college buddy, and because it's a small world, and Valerie Plame was a drop-dead gorgeous blond working at the Greek embassy when Grossman was at the Turkish embassy. She was a gossipy tidbit to Armitage, that proved what a bunch of clowns the CIA is -- although, of course, not proving that State is any less clownish.

So, yeah, while I think that there were all sorts of people who knew in the beginning/middle of June, and so any of them could have passed the gossip around, I'm not willing to bet on particular people (like on the Hill) that they would have told. The president getting blowjobs in the oval office is the sort of information that people wouldn't have kept to themselves. That some bozo lying washed-up ambassador had a wife who was a managerial type at the CIA is a pretty big yawner that may have never been broadcast widely.

If I'm right that Pincus also heard about Plame from Armitage and did so before June 12, --we have Pincus, Woodward and Novak all having heard it from the same source before Libby said anything (even baffle gab) to any reporter.

Doesn't that shed light on the SP's so far successful effort to keep Armitage's name out of the case because he is an "innocent accused"? It would keep Libby from mounting his defense that he heard it from reporters because he could not ask them about the one person from whom they most likely heard it?

cathy. I'm not assuming the Hill learned in June--but rather sometime between the June disclosures and the confirmation of Comey in December and the appointment of Fitz a day or so after that--in the period where Schumer and Conyers were demanding a full investigation by a special prosecutor.

TS sent me the opinion on the classified docs. Unfortunately, it is off the pacer system and my adobe reader doesn't permit me to copy it. If anyone has a way to do that and wants to, I'll forward the email and attachment to them. Basically the govt had argued that the defendant should not be allowed to use such evidence unleee he could first show it was relevant and helpful and that the utility to hom outweighed the govt's need for secrecy. The Judge said that was contrary to Congressional meaning where the CIPA was not designed to preclude the defendant from moutning a defense .In other words, the Fed Rules of Evidence do not permit the govt to limit the defendant's right to defend himself.

Ah, ok, Clarice, misunderstood you... I'm working on my own letter, where I want to focus quite tightly on the internal logic of the counts of the indictment. I think that the number one most important logical predicate to the functioning of Fitzgerald's charges is that the June 23rd meeting between Libby and Miller is the first time that the Plame gossip travelled outside of official government communications. Armitage telling Woodward on June 13th means that logically there is no way to prove beyond a reasonable doubt that anything which Libby told the FBI is materially false.

What I want to focus on is that Fitzgerald was apparently uninterested in whether Plame knowledge was travelling in June outside of government employees communicating it to other government employees. Fitzgerald's case looks very much like a last-minute thrown-together job. When he brought the indictment, one-and-a-half years after he started, two years after the FBI started, they did not have the freaking foggiest clue as to whether the things they allege in the indictment are true. Because who knows what they were investigating, but it sure didn't include investigating whether Libby lied to the FBI.

If the government is
still not satisfied that the classified information is adequately protected at the conclusion of these
hearings, the government has the power to preclude entirely the introduction at trial of the?
classified information. 18 U.S.C. App., 6(c)(2).? While invocation of this option may require
dismissal of this case, now, just as during the discovery process, [t]he burden is the
Governments, not to be shifted to the trial judge, to decide whether the public prejudice of allowing the crime to go unpublished is greater than that attendant upon the possible disclosure."

rotect the classified information from disclosure. 18 U.S.C. App. § 6(c). If the government is
still not satisfied that the classified information is adequately protected at the conclusion of these
hearings, the government has the power to preclude entirely the introduction at trial of the
classified information. 18 U.S.C. App., § 6(c)(2). While invocation of this option may require
dismissal of this case, now, just as during the discovery process, “[t]he burden is the
Government’s, not to be shifted to the trial judge, to decide whether the public prejudice ofallowing the crime to go unpublished is greater than that attendant upon the possible disclos

I have had serious questions about Fitzgerald's profligate & selective use of newspaper articles at all from the start. He substitutes them for actual investigation, uses them to make points in his affidavits that he would not otherwise be able to make himself -- or that might compromise his integrity as an officer of the court -- not to mention asserting them to be viable element of supervision. His use of the annotated NYTimes OpEd was clearly an attempt to substitute his interpretation of Cheney's intent without risking contradictory, potentially exculpatory, testimony from the Vice President.

Worst of all, however, Fitzgerald's use of accounts in the press seriously damages the defendant's ability to confront what are essentially being fronted as his accusers. Not only are those accusers largely, and controversially anonymous, the are further protected by the high bar required for obtaining testimony from reporters. The end result is that Fitzgerald has shifted the particularly complicated burden of investigation and proof in this case to the Defense.